98 Wis. 428 | Wis. | 1898
Lead Opinion
At the common law the husband was primarily liable for the support of his minor children. 2 Kent, Comm. 190. In McGoon v. Irvin, 1 Pin. 532, it was said that “ by every principle of law upon the subject, recognized and strengthened by our statute, parents are under legal obligation to maintain and support their children who are of tender years and helpless.” The statute (K. S. 1878, sec. 1503) makes the father primarily liable to support his minor children. When the marriage is dissolved by divorce, the duty of parents to maintain their children remains as before, for children are not parties- to the divorce suit and do not lose any rights thereby. Hence the father’s duty to maintain them after the divorce, where there is no decree of the court relating thereto, especially if their custody is not
In McGoon v. Irvin, 1 Pin. 532, where the husband had procured a legislative divorce from his wife, and had left the minor children of the marriage in a family of a third person to be supported, the mother afterwards obtained the custody of the children without his knowledge and consent, and refused, on demand made in behalf of the father, to give them up. She afterwards intermarried with I., and the children were supported and educated by him. In an action by L against the father to recover for their support, it was held that McG-. had a legal right to the custody of the children, but, as he had not attempted to assert it against I., the law would presume that McG-. had assented to their being in the control and custody of I.’s wife, their mother, and that I. could recover, though the act of the mother in obtaining the custody of the children before her second marriage might have been wrongful. And it was said by the court that “ when a parent permits a stranger to maintain, support, and instruct such children, in no way objecting to the act,, but rather assenting and advising therein, the law will presume that he knows his obligations, accepts the services, and assumes to pay.” It was also said that “ there was no duty or obligation on the plaintiff to notify the defendant to take the children away, or leave them to suffer until he could see
It is to be borne in mind that the divorce in the instant
The case of Holt v. Holt, 42 Ark. 495, was one where there had been a decree of divorce giving the custody of infant children to the mother, and it was held that this would not relieve the father from his' obligation to support them,— that he was bound to maintain them as long as they were
It was the right, and the duty as well, of the husband to obtain the custody and control of his infant son, and to support him, after he had arrived at the age of ten years. Ye consider it against the policy of the law to encourage a father thus obligated to attempt to ignore or evade his parental duty, or to cast it upon any other party, so as to enable him to convert such parental neglect and misconduct into a shield against parental liability. Domestic and social duty alike required him, when his son arrived a*t the age of ten years, to enforce his parental rights and discharge his parental duties. He knew they were being exercised and performed by another, who as to him was then an utter stranger, and he knew, also, that the disrupted condition of his family relations had been adjudged in consequence of his marital misconduct. We think the case of Pretzinger v. Pretzinger, 45 Ohio St. 458, and other similar cases, indicate the true rule, and that they are in accordance with sound principles of public policy. Ye think there is ample ground from which the acquiescence and assent of the husband may be justly inferred to the provision made by the claimant for the necessary support and maintenance of his son, and which he had failed to furnish for him, so that a promise on his part to compensate the claimant for what she had so expended may be justly implied, as in the case of McGoon v.
We hold, therefore, for the reasons stated, that the recovery in favor of the claimant is correct, and should be affirmed.
By the Court.— The judgment of the circuit court is affirmed, with costs against the said appellant to be paid out of the estate of August Zilley, deceased.
Dissenting Opinion
(dissenting). The question presented and decided in this case, stated plainly, is as follows: Where husband and wife are divorced and the custody of their minor child is left with the mother till it arrives at the age of ten years, and the legal custody then passes to the father by operation of law, if, when the latter period arrives, he does all thereafter that parental affection can suggest to induce the child to live with him, stopping short only of using force or legal authority to accomplish that result, yet the child, through stronger natural attachment for the mother, or induced by her, or from both causes combined, shall remain with the mother by her consent, and she makes no claim to compensation in advance for supporting the child or during the time of such support, and knows that the father desires to control, educate, and maintain the child in his own way,' can the mother maintain an action against the father for her services in maintaining such child during the time the legal custody was in the latter?
My brethren have answered this question in the affirmative. The grounds upon which the decision is placed, I am not able to discern with certainty. Allusions are made to the moral and legal duty of a father to maintain his child, with which all concur, but obviously that mere duty is one enforceable only by the public. In an action by a private
I am warranted in believing that the decision here, as stated, is based on the natural and legal obligation to support the child, not on contract, because the most prominent authorities cited and quoted from by my brethren in support of the decision are instances, in my judgment, that
Again, in Stanton v. Willson, 3 Day (Conn.), 37, decided in 1808, that court held that the divorced wife could recover of her former husband for the support of the child because of the fact that prior to the divorce he abandoned it and his con-' duct compelled the court to place its custody with the mother as its guardian; that by reason of the facts she could contract debts for the support of the child after the divorce,, while she had the legal custody of it without any provision for its support, without consent of the father, upon the principle that when a person forces his wife from his home he is liable to the stranger to whom she is thus compelled to-resort for necessaries. The case has very little bearing on this one. Here the custody of the child was in the father; his residence with the mother was not by order of the court, or because abandoned or compelled to leave the paternal roof, but because he preferred the society of his mother, and the mother invited and induced it, by her conduct, against the wishes of the father. Manifestly the case should.not be considered as authority under the circumstances. But treat this, for the sake of argument, as a case where there was an abandonment of mother and child-before the divorce, so that the court, in its discretion, placed .the custody of the child with the mother as a matter of necessity, but without provision for compensation for its support, and we then have,, substantially, Finch, v. Finch, 22 Conn. 411, decided in 1855, cited in the opinion of the court, but unfortunately, the part
From the foregoing we might proceed at great length to review the authorities, substantially all in accord as I read them, that no recovery can be had in a case like this, except upon a contract obligation, and that the doctrine is elementary that mere moral or legal duty, as between parent and child or the parent and the public, constitutes no foundation for the liability, nor is it material at all except as circumstances from which a promise may be inferred; and that such inference cannot arise when in fact repelled by the proof that the father was anxious and willing to support his child
The only question left is, Is there any circumstance here from which a contract can be inferred? It may be conceded that slight circumstances will be sufficient, but I am unable to find evidence of any such circumstances preserved in the record. On the other hand, the circumstances repel all such inferences. In Cushman v. Hassler, supra, it was held that, v/hile from unexplained residence of a child with its mother, the legal custody being in the father, a contract may be implied to pay the latter for her services, when such residence is explained as contrary to the wish of the father the inference is effectually repelled. That appears to fit the circumstances of this case most perfectly, and is in accordance with reason and common sense. So in Lapworth v.
We hesitate to go further in this discussion. The excuse for proceeding so far is the importance of the question involved, and the wide departure which, in my judgment, the decision rendered is from the settled rule on the subject. I cannot subscribe to the doctrine that, where a child resides with its mother by choice and through her maternal influence over it, after the father has exhausted all the resources that strong affection for his child can suggest to secure his